Citation Nr: 1454377
Decision Date: 12/10/14 Archive Date: 12/16/14
DOCKET NO. 12-15 850 ) DATE
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Received from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim for service connection for upper and lower gastrointestinal (GI) tract disability.
2. Whether new and material evidence has been received to reopen a claim for service connection for depression.
3. Service connection for upper and lower GI tract disability.
4. Service connection for depression.
5. Entitlement to service connection for a disability manifested by fatigue.
6. Entitlement to a compensable rating for an appendectomy scar.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Alicia R. Bordewyk
INTRODUCTION
The Veteran served on active duty from March 1959 to April 1962 with 3 years, 8 months, and 21 days of prior other service.
This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in pertinent part, found that new and material evidence had not been submitted to reopen the claims for service connection for upper and lower GI tract disability and depression, denied service connection for fatigue, and denied entitlement to a compensable rating for a service-connected appendectomy scar.
The issues of service connection for a GI tract disability and depression were denied in an unappealed July 2006 rating decision. Where the claim in question has been finally adjudicated at the RO level and not appealed, the law makes clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of what the RO has done. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, despite the various characterizations of the issue throughout the appeal, the Board must make an independent determination as to whether new and material evidence has been presented to reopen these claims.
The Board notes that new evidence was submitted by the Veteran to the Board in November 2014 without a waiver of consideration by the agency of original jurisdiction (AOJ). However, as the Board is reopening the claim and remanding each of the issues on appeal, the AOJ will be able to consider this evidence before a final adjudication of these issues on appeal.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014).
(The issues of service connection for a GI tract disability, depression, and a fatigue disability, as well as entitlement to a compensable rating for the service-connected scar, are addressed in the remand that follows the decision below.)
FINDINGS OF FACT
1. In July 2006, service connection for a GI tract disability and depression were denied; no additional evidence or notice of disagreement was submitted within one year of notice of that decision.
2. Evidence received more than one year after the July 2006 rating decision is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claims for service connection for a GI tract disability and depression.
CONCLUSIONS OF LAW
1. The July 2006 rating decision that denied claims for service connection for a GI tract disability and depression is final. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103 (2014).
2. The evidence received since the July 2006 rating decision is new and material, sufficient to reopen claims of service connection a GI tract disability and depression. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
If a notice of disagreement is not received within one year of the notice of an RO decision, and no new and material evidence is received during that period, the decision becomes final. 38 U.S.C.A. § 7105(b)-(c) (West 2002). Generally, a claim that has been finally denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108.
New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010).
The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 488 (1997).
For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996).
Service connection for a GI tract disability and depression was initially denied in a July 2006 rating decision on the basis that a current GI tract disability and depression had not been demonstrated. The Veteran did not submit a notice of disagreement or new evidence within one year of that rating decision. Therefore, the decision on the claim became final. 38 U.S.C.A. §§ 7104(b), 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103; cf. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that VA has a duty to consider in every case whether evidence received within one year of an RO decision is new and material so as to prevent the decision from becoming final under 38 C.F.R. § 3.156(c) (2014)).
Since the July 2006 rating decision, private medical records have been submitted that demonstrate an assessment of dysphagia with solid foods and noted long-standing constipation. A June 2009 VA examiner diagnosed GERD on the basis of the Veteran's reports regarding private treatment, diagnostic testing, and diagnosis of the disability. Another June 2009 VA examiner diagnosed depression and linked the disability to chronic abdominal pain related to post-operative complications following an appendectomy. A February 2009 letter from the Veteran's private treatment provider stated that the Veteran complained of right lower quadrant abdominal pain and that he believed that pain was related to the in-service appendectomy. Finally, a January 2010 hospital discharge report diagnosed partial small bowel obstruction. The report indicated that this was due to the Veteran's "history of abdominal surgeries," although this appears likely to be a recitation of the Veteran's own self-reported history.
The private and VA records are new in that they were not previously of record. They pertain to a basis for the prior denials, namely that the Veteran did not have a currently diagnosed disability, to include a GI tract disability and depression. They raise a reasonable possibility of substantiating the claims as they demonstrate current disabilities and symptoms. Moreover, it raises a reasonable possibility of substantiating the claims as it triggers VA's duty to get an opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). The claims are therefore reopened.
ORDER
New and material evidence having been received, the claim of entitlement to service connection for a GI tract disability is reopened, and to this limited extent, the appeal is granted.
New and material evidence having been received, the claim of entitlement to service connection for depression is reopened, and to this limited extent, the appeal is granted.
REMAND
During a June 2009 VA examination, the Veteran reported that he had been diagnosed with GERD, had been on medication for over eight years, and was placed on a proton pump inhibitor. He also reported that he has had two colonoscopies as well as an endoscopic examination of his upper digestive tract and esophagogastroduodenoscopy last year. Records of such treatment or evaluation have not been obtained.
In addition, although his private physician, Dr. G.L., in a February 2009 letter reported treatment of the Veteran beginning in 1991, very few records from this physician have been obtained, and those of record are largely diagnostic blood test results and reports of treatment from other physicians. Therefore, it appears that there may be outstanding records from this physician.
VA has a duty to obtain relevant records of private treatment. Massey v. Brown,
7 Vet. App. 204 (1994). Therefore, upon remand, the Board requests that the Veteran provide VA with authorization so that records may be obtained following the procedures under 38 C.F.R. § 3.159 (2014).
In a June 2012 VA Form 9, the Veteran asserted that the June 2009 VA examiner was unprepared and did not order the requisite testing to determine whether he had extensive scarring and adhesions from the in-service appendectomy, as indicated by Dr. G.L., his private physician. The Board notes that the examiner indicated that there was no abdominal pain or diarrhea, but the Veteran has reported the consistent presence of such symptoms and a January 2010 hospital discharge summary indicates complaints of such symptoms and the diagnosis of a partial small bowel obstruction.
Moreover, the Veteran and his representative have asserted that the appendectomy scar is painful, which indicates that his disability may have worsened since the 2009 examination. As such, and given that each of the issues on appeal are, according to the Veteran, intertwined with the scar and the in-service appendectomy, the Board finds that a new VA examination is warranted to determine the severity of the service-connected scar and whether there are any residuals from the in-service appendectomy or the scar, that have caused fatigue, depression, or GI tract disability.
Accordingly, the case is REMANDED for the following action:
1. Ask the Veteran to provide releases authorizing VA to obtain all records of private treatment, including with Dr. G.L. and those providers or locations where the diagnostic tests identified in the June 2009 VA examination were ordered and performed.
If the Veteran fails to complete necessary authorizations, tell him that he may obtain and submit the records himself.
If any records cannot be obtained, inform the Veteran of this fact, tell him what efforts were made to obtain the records, and advise him of any additional development that will be undertaken.
2. Once the above-requested development has been completed, provide the Veteran with a VA examination with a qualified physician to determine the severity of the service-connected scar, residual of appendectomy, and whether any current disability is related to the in-service appendectomy or the service-connected scar.
The claims folder, including this remand and any relevant records contained in the virtual system, must be sent to the examiner for review.
The examiner should identify all symptoms associated with the appendectomy scar. The examiner should note the extent of the scar and whether it is tender on examination, as well as the size and any other manifestations, including whether there is adhesion associated with the scar or any other internal adhesion from the appendectomy.
The examiner should then indicate whether the Veteran has any other residuals related to the current service-connected scar or the in-service appendectomy, including, but not limited to: a disability manifested by fatigue from not eating food due to the scar; upper and lower GI tract infections/inflammation with diarrhea, constipation, or indigestion; GERD; dysphagia; partial bowel obstruction; or an acquired psychiatric disability, to include depression.
The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any GI tract disability, depression, or fatigue disability had onset in service or is otherwise related to a disease or injury in service, including the appendectomy. The examiner should specifically opine whether any GI tract disability, depression, or fatigue disability was either (a) caused by or (b) aggravated (made permanently worse) by the Veteran's service-connected scar or appendectomy residuals.
The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms.
If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so.
If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered.
3. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and explanations requested in this remand.
4. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. After they are afforded an opportunity to respond, the case should be returned to the Board.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs